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Jury hears alleged victim's side

Defense attorney questions whether woman had motivation to lie

A month or two before a 60-year-old man allegedly crawled into a younger family member’s bed and allegedly sexually assaulted her while she slept, he revealed his intentions in a vulgar sexual pass, according to testimony from the alleged victim.

Recounting the memory from the witness stand in Juneau Superior Court Thursday, the woman said the incident prompted her to move out of defendant Frank W. Lee’s apartment. She said she never told anyone about it except her boyfriend and her boyfriend’s sister.

“He acted like it never happened,” the woman, a mother in her early 20s, said. “He acted like he never touched me. He just tried to be a (family member) again. I lost complete trust for him, and respect.”

In a case that is largely ‘he-said, she-said,’ the jury was able to hear the woman’s side of the story through her testimony on Thursday and Friday, the first two days of trial.

The woman, whose name is not being disclosed since the Empire does not identify victims or possible victims of sex crimes without permission, said the incident described above served as a precursor for the assault on Sept. 10, 2012, for which Lee is standing trial.

She said she fell asleep around 3 a.m. in the back bedroom of Lee’s Juneau apartment after his 60th birthday celebration and awoke around 4:30 or 5 a.m. to find him performing oral sex on her.

What’s worse, she said, was that her son was sleeping next to her when it happened.

“I will never knowingly have any kind of sexual contact with anybody in front of my son,” she told the jurors. “I love my son, and I would never abuse him like that. ... Me and my boyfriend don’t even do that in front of my son. Why would I do it with somebody who I already hated?”

She fought back tears while describing what she said happened.

“I just feel disgusted every time I think about it,” she said.

Williams ended up having to impeach the woman at one point when what she described, in a legal sense, meant that there was no penetration, which is an element the state is required to prove in order to convict Lee. Williams reminded the woman of what she testified to during the grand jury proceedings, and the woman said that refreshed her memory that there had been penetration.

Lee, meanwhile, quietly watched the woman testify from his seat at the defendant’s table wearing a black business suit and listening to the proceedings with the help of headphones.

He is charged with three felony counts of sexual assault: one count in the first degree for knowingly engaging in sexual penetration with the victim without her consent, and two counts in the second degree for knowingly engaging in sexual penetration with the victim knowing that she was sleeping or unaware that a sex act was taking place. If convicted, he could be facing up to 99 years for each count.

Lee has flatly denied the charges, and his defense attorney Assistant Public Defender Eric Hedland has posited the woman had motivation to fabricate the allegations in order to keep custody of her son.

Although the defense has not presented its case yet, Hedland cross-examined the woman on Friday and alluded to the fact that Lee’s family threatened to report the woman to the Office of Children’s Services in the days leading up to the alleged assault.

The woman testified she was homeless for a while, and her son stayed with Lee and another family member during that time. Lee also babysat her child on a daily basis while the woman was attending school. She said her son and Lee at that time were “like best friends.”

During a bench conference with the judge outside the earshot of jurors, Hedland said he plans of arguing that the woman was worried that Lee was going to report her to OCS and that he was going to get custody.

The woman testified under cross-examination that since the allegations were leveled, she has 100 percent custody of her son.

She also conceded she had “hated” Lee “for various reasons” before the sexual pass preceding the alleged assault took place. She was not asked why.

She denied allegations that she told someone, “In order to get rid of someone that you don’t want to have around, just accuse them of rape.” A person sitting on the grand jury that indicted Lee last September reported to the court that he overheard the woman make those remarks as she was talking to someone on her cell phone at a bus stop.

“No, I would never say that,” the woman insisted under questioning from Hedland.

She said she was not acting like it was a “game,” as the grand juror had reported. “It wasn’t a game to me,” she said. “This isn’t a game to me. This is my life.”

Hedland questioned whether she deleted test messages from a phone that she was using immediately after the alleged assault. Testimony indicates she asked her friend (who was also in the bedroom at the time of the alleged assault but who did not witness any sexual acts taking place) to text her boyfriend to tell him what happened.

Hedland told the jury that they only have the outgoing messages from the boyfriend, and that the ingoing messages were deleted.

The woman said she didn’t remember deleting any messages, and her friend — who also denied deleting them — was the one texting for her.

The alleged victim said whenever she uses that phone, though, the messages don’t save automatically: it asks to save as a draft, and she says she always declines because she doesn’t want people reading her texts. She did admit, however, to deleting her Facebook posts for a block of time surrounding the incident.

Still under cross-examination, Hedland pointed out for the jury inconsistencies in the woman’s testimony regarding a sexual assault forensic exam that was administered at the hospital just a few hours after the alleged assault.

She told the nurse she had not urinated in the time between the assault and the exam, as the nurse testified on Friday and as evidenced on a box that is checked off on a hospital form. But the alleged victim changed her story on the witness stand and said she had, which could call into question the integrity of the DNA samples that are favorable to the defense. The woman also told the nurse during the exam that she was unsure whether penetration took place, despite the fact that she testified to the grand jury and the trial jury on Thursday that it had.

Hedland on Friday pressed the woman on that issue, and asked her to recall again. She responded by taking a long pause and then saying it was hard to remember those kinds of details.

Other evidence in the case is in play: a confession during a police-recorded phone call wherein Lee admits to performing sex acts on the victim. The defense says the confession is not reliable since Lee was intoxicated.

DNA evidence, which the defense says is exculpatory, is also in play. A DNA analyst from the state crime lab in Anchorage is expected to testify on Monday. Attorneys say they think the case will likely go to the jury at the end of the day Tuesday.